Petition for Writ of Certiorari — Massachusetts v. Derosia

') Supreme Court, RSL

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38-353 AUS 23 1988

No. JOSEPH E, SPANIO“,

CLERK B.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

V .

LEO A. DEROSIA,

Respondent

PETITION FOR WRIT OF CrER*™ .ORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

JAMES M. SHANNON

Attorney General

LINDA G. KATZ

Assistant Attorney General

Criminal Bureau

One Ashburton Place

Boston, Massachusetts 02108

(617) 727-2200 ext. 2814

(Counsel of Record)

rita

QUESTIONS PRESENTED

1. Whether Steagald v. United States, 451

U.S. 204 (1981), requires suppression of a

weapon seized from a defendant upon his

arrest on probable cause in his mother's

home, where the defendant was merely a

visitor in the home, and where he opened

the door to the police in response to

their knock on the door.

2. Whether an arrest is warrantless

within the meaning of Payton v. Nev. ork,

445 U.S. 573 (1980), where the arresting

officers are in possession of an

outstanding warrant from another state.

3. Where a suspect is wanted in New

Hampshire for bail jumping and drug and

weapons offenses, is probably armed, and

may be forewarned of the arrival of the

police, whether it is unreasonable for the

police to arrest him inside a dwelling in

Massachusetts without first obtaining a

Massachusetts warrant.

TABLE OF CONTENTS

OPTIONS BEE. 2c ccc cc ccc cere cw ensscecs 1

JURIGDICTION. . cc cccscecvccsescccsecssseces 2

CONSTITUTIONAL PROVISION

AND STATUTE INVOLVED. ......ccccsccees 2

STATEMENT OF THE CABE... cc cccccescccccces 3

REASONS FOR GRANTING THE WRIT............ 8

I.

II.

SER.

THE DECISION BELOW, WHICH

REQUIRES THE EXCLUSION OF

EVIDENCE IN THE ABSENCE OF A

SHOWING THAT THE DEFENDANT'S

PRIVACY INTERESTS WERE INFRINGED,

IS IN CONFLICT WITH DECISIONS OF

THEE GUUME s cee ces ececcsecesseces 8

THIS COURT SHOULD DECIDE WHETHER

AN OUTSTANDING WARRANT FROM

ANOTHER STATE SATISFIES THE

FOURTH AMENDMENT WARRANT

PRBAPU AOU 5 ec ccceccsesesecoce 12

THIS COURT SHOULD ADOPT AND APPLY

GUIDELINES FOR DETERMINING

WHETHER EXIGENT CIRCUMSTANCES

JUSTIFY A WARRANTLESS ARREST IN

A DWELLING

CERES wesc ce es esses eeeseeseseeeeers

PEE 66660056 soe dea wesesesecsrsess

CE Se 6s Gh eS GS ba Cae KR eS Ee OSES ESS

TABLE OF AUTHORITIES

Cases

Commonwealth v. Derosia

402 Mass. 284,

SIS O.. oe GOO CIOS) . nw cc ce ceus passim

Commonwealth v. Sawyer

389 Mass. 686,

Gn Wie ee CAOGN) sock csedceacer 13

Dorman v. United States

oe se | Bl ee. CP ) eee 16

Payton v. New York

> ie Fy SR Bw > |) Ae passim

People v. Coto

199 Colo. 508,

Cae We ee PD oo ac ek ee beheausws 15

People v. Wolgemuth

69 I11.2d 154,

370 N.E.2d 1067 (1977),

cert. denied 436 U.S. 908 (1978)....14

Rakas v. Illinois

Se ees A ET OR gcc ctcssccces 9, 10

Rawlings v. Kentucky

ry XN SR tee ere 10

Vv

106 Idaho 358, 679 P.2d 635 (1983),

cert. denied, 464 U.S. 1041 (1984)..15

- iii -

State v. Payano

1 Pe ££: e Se sh) eer ree 14

state v. Reasoner

154 Ariz. 377, 742 P.2¢

ee MR og. Fe ee) errr ree ee 14

Steagald v. United States

Toe? we 2) OCR 5. 7, 2

United States v. Carrion

609 7.20 1120 them Cit. 29OT)< 6c cwas ll

United States v. Salvucci

reve Se eS Bll Rr ee oe cee ll

United States v. Santana

rope mS. |. reer ere 11

United States v. Standridge -

916 ©.26 1634 (id¢h Cit. 1967) ...623 16

United States v. Watson

re A ee . * reer rer ll

United States v. Whitten

706 7.20 i668 een CEE. 1963) 2.622600 )

Warden v. Hayden

387 U.S. 294 (1967)

Welsh v. Wisconsin

466 U.S. 740 (1984)

Statutes

28 U.8.€. SESS TER) 6a bss cc atv bees hieacvas

Mass. Gen. Laws, ch. 276,

No.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

COMMONWEALTH OF MASSACHUSETTS,

Petitioner

Vv.

LEO A. DEROSIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME JUDICIAL COURT

FOR THE COMMONWEALTH OF MASSACHUSETTS

OPINIONS BELOW

The opinion of the Supreme Judicial

Court below is reported at 402 Mass. 284,

522 N.E.2d 408 (1988), reproduced here as

Appendix A, page la. The opinion of the

District Court Department, Fitchburg

Division is unpublished. It is reproduced

here as Appendix B, page 4a.

» 2 «

JURISDICTION

The decision of the Supreme Judicial

Court was entered on May 4, 1988. The

Supreme Judicial Court denied a timely

petition for rehearing on June 3, 1988.

On July 29, 1988, Justice White signed an

order extending the time for filing this

petition for certiorari to and including

August 23, 1988. The jurisdiction of this

Court is invoked under 28 U.S.C. §1257(3).

CONSTITUTIONAL PROVISION

AND STATUTE [INVOLVED

U.S. Const. amend. IV

The right of the people to be

secure in their persons, houses,

papers and effects, against

unreasonable searches and seizures,

shall not be violated, and no warrant

shall issue, but upon probable cause,

supported by oath or affirmation, and

particularly describing the place to

be searched, and the persons or things

to be seized.

Mass. Gen. Laws, ch. 276, §20B

The arrest of a person may be

lawfully made also by any officer

=» 3-

authorized to serve warrants in

criminal cases, without a warrant,

upon reasonable information that the

accused stands charged in another

state with a crime punishable by death

or by imprisonment for a term

exceeding one year, but when so

arrested the accused shall be taken

with all practicable speed before a

court or justice authorized to issue

warrants in criminal cases and

complaint shall be made against him

under oath setting forth the ground

for the arrest as in the preceding

section; and thereafter his answer

shall be heard as if he had been

arrested on a warrant.

STATEMENT OF THE CASE

At approximately 8:00 p.m. on January

5, 1986, police in Gardner, Massachusetts

received a telephone call from a Keene,

New Hampshire police officer regarding the

respondent, Leo A. Derosia. The Gardner

Police were informed that Derosia, who

was wanted on a New Hampshire capias

warrant for bail jumping, and for firearm

and drug offenses, was at a certain

address in Gardner. The Keene police

provided a detailed description of

Derosia, and informed the Gardner police

that Derosia was armed with a .32 caliber

handgun, and probably had a police

scanner. A Gardner police officer was

dispatched to watch the house. When he

questioned two people whom he saw exit the

address, he was told that Derosia was

inside.

By approximately 9:00 p.m., after

further investigation, the police

contacted an assistant court clerk, who

advised them that it was not necessary to

obtain a Massachusetts warrant. The

police then formulated their plans to

effect the arrest. They were in

possession of the New Hampshire capias

warrant at this time.

Four or five officers went to the

address, which was the home of Derosia's

mother, and one knocked on the door to her

apartment. Derosia opened the door, and

the police immediately entered. Upon

frisking Derosia, the police found a .32

caliber handgun in his waistband. He was

taken into custody, and the next day a

complaint issued in Gardner District

Court, charging Derosia with unlawfully

Carrying a firearm, M.G.L. ch. 269, §10(a).

Prior to his trial in the jury

session, respondent filed a motion to

suppress the firearm. He claimed, inter

alia, that the arre t and search were

conducted in violation of the Fourth

Amendment to the United States

Constitution. The District Court judge

granted the motion. He held that “since

there were no exigent circumstances and

the defendant was inside the private

residence of another,” under Payton v. New

York, 445 U.S. 573 (1980) and Steagald v.

United States, 451 U.S. 204 (1981), a

warrantless arrest was barred by the

Fourth Amendment. (Findings of Fact and

Rulings of Law on Defendant's Motion to

Suppress) (Appendix B, 10a). The Court

further held that the New Hampshire

warrant had no effect in Massachusetts,

and that M.G.L. ch. 276, §20B, which

permits the warrantless arrest of

fugitives, would be unconstitutional if

construed as permitting a warrantless

arrest in a residence. Hence, the Court

refus d to so construe the statute.

(Appendix B, 15a, 18a).

The Court did not address the question

whether the defendant had a reasonable

expectation of privacy in his mother's

home. The sole facts bearing on this

issue as found by the Court were that the

defendant was a visitor in the house: “He

was not living there and did not intend to

sleep there that evening.” (Appendix B,

8a).

The Commonwealth was granted leave to

appeal the suppression order. On appeal,

it argued that Steagald v. United States,

supra, and Payton v. New York, supra, did

not apply because the defendant was merely

a transient guest with no reasonable

expectation of privacy in his mother's

residence. It further argued that the

arrest was lawful under the principles of

_Payton, because the arrest was based on a

New Hampshire indictment and capias

Hence, a neutral and detached

determination of probable cause had been

interposed between the police and the

defendant. Finally, the Commonwealth

argued that the arrest was justified by

exigent circumstances.

In a terse opinion, the Supreme

Judicial Court rejected the Commonwealth's

arguments. Specifically noting that it

was deciding the case under the United

States Constitution, the Court held that a

Massachusetts warrant was required, and

that the lower court therefore had

properly allowed the motion to suppress.

REASONS FOR GRANTING THE WRIT

| THE DECISION BELOW, WHICH REQUIRES THE

EXCLUSION OF EVIDENCE IN THE ABSENCE

OF A SHOWING THAT THE DEFENDANT'S

PRIVACY INTERESTS WERE INFRINGED, IS

IN CONFLICT WITH DECISIONS OF THIS

COURT.

In reaching the conclusion that the

Fourth Amendment requ:>red suppression of

the firearm, the Supreme Judicial Court

misconstrued the holding in Steagald v.

United States, 451 U.S. 204 (1981), and

therefore bypassed completely the question

whether respondent (the defendant below)

had any reasonable expectation of privacy

in his mother's home. In Steagald, this

Court held that law enforcement officers

may not legally search for the subject of

an arrest warrant in the home of a third

party without first obtaining a search

warrant. However, that case was based on

the Fourth Amendment rights of a resident

of the dweliing. Logically, Steagald

should have little, if any, bearing on the

question in this case, since respondent

was not a resident of his mother's home,

and since no search of the premises was

involved. Rather, the controlling

precedents from this Court include Payton

v. New York, 445 U.S. 573 (1980), and

Rakas v. Illinois, 439 U.S. 128 (1978).

In Payton v. New York, this Court set

forth the basic principle that, absent

exigent circumstances, the police may not

enter a suspect's own home to arrest him

or her without a warrant. In Rakas v.

Illinois it was acknowledged that one can

have a legitimate expectation of privacy

in a place other than his or her own

home. However, Rakas also makes clear

« 32° a

that the mere fact that one is

legitimately on the premises which have

been searched does not mean she or he can

claim the protection of the Fourth

Amendment. "The proponent of a motion to

suppress has the burden of establishing

that his own Fourth Amendment rights were

violated by the challenged search or

seizure.” 439 U.S. @© A434; i.

In the instant case, Derosia made

absolutely no showing that he had a

reasonable expectation of privacy at his

mother's house which was violated by the

police intrusion. The opinion of the

Supreme Judicial Court thus conflicts with

Rakas v. Illinois and other opinions of

this Court which reaffirm the principle

that “Fourth Amendment rights are personal

rights that may not be asserted

vicariously ..." Jd. at 133. See also,

e.g., Rawlings v. Kentucky, 448 U.S. 98,

elie S

of etc Shie

AV Bie e RI ton WoC

i § or

104 (1980); United States v. Salvucci,

448 U.S. 83 (1980).

Moreover, the state court failed to

consider the significance of the fact that

Derosia answered the door, thus

voluntarily exposing himself "to public

view, speech, hearing, and touch.” United

States v. Santana, 427 U.S. 38, 42 (1976).

In Santana, this Court held that a suspect

who was standing in the doorway to her

house when the police first sought to

arrest her had no expectation of privacy.

The court held that the doorway was a

public place. Thus, under United States

v. Watson, 423 U.S. 411 (1976), no warrant

was necessary. See also, e.g., United

States v. Carrion, 809 F.2d 1120, 1128

(Sth Cir. 1987); United States v. Whitten,

706 F.2d 1000, 1015 (9th Cir. 1983).

a 22 ws

II. THIS COURT SHOULD DECIDE WHETHER AN

OUTSTANDING WARRANT FROM ANOTHER STATE

SATISFIES THE FOURTH AMENDMENT WARRANT

REQUIREMENT.

In characterizing the arrest as

"warrantless," the Supreme Judicial Court

implicitly rejected the Commonwealth's

argument that the New Hampshire capias

satisfied the Fourth Amendment Warrant

requirement. It is submitted that this

decision is in conflict with at least the

reasoning, if not the precise holding of

Payton v. New York. The requirement of an

arrest warrant in Payton was intended “to

interpose a magistrate's determination of

probable cause between the zealous officer

and the citizen." 445 U.S. at 602. Here,

that function was performed by a New

Hampshire judicial officer. It offends

notions of comity and federalism to

conclude, as the Supreme Judicial Court

implicitly has, that federal constitu-

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tional principles require the additional

interposition of a Massachusetts judicial

officer before the suspect may be arrested

in a Massachusetts dwelling.

Further, it invites contradictory

results even with respect to the same

evidence. If the weapon seized from

Derosia were to be offered in a New

Hampshire prosecution, the courts of that

jurisdiction might well conclude upon a

motion to suppress that their own warrant

did satisfy the Payton requirement,

notwithstanding the fact that the arrest

took place outside that state's borders.

In ruling as it did, the Supreme

Judicial Court inexplicably failed to

follow even its own prior decision on this

very issue. In Commonwealth v. Sawyer,

389 Mass. 686, 452 N.E.2d 1094 (1983), the

Supreme Judicial Court held that where a

Suspect was arrested inside his hotel room

“a!

in Maine on the basis of information that

a warrant had been issued in New York,

"the arrest itself was not warrantless

within the meaning of Payton v. New York,

Supra.” 389 Mass. at 695, 452 N.E.2d at

1099.

The state courts of last resort in

Rhode Island and Illinois have also

concluded that when a suspect is arrested

in one state on the basis of a warrant

issued by another state, the Payton

warrant requirement has been met. State

v. Payano, 528 A.2d 721, 724-25 (R.I.

1987); People v. Wolgemuth, 69 I11.2d 154,

370 N.E.2d 1067, 1070 (1977), cert. denied

436 U.S. 908 (1978). See also State v.

Reasoner, 154 Ariz. 377, 742 P.2d 1363,

1366-67 (Ariz. App. 1987). However, the

Supreme Courts of Idaho and Colorado have

taken the contrary position that the

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“—\ 2

Payton warrant requirement is not met by

an out-of-state warrant. State v.

Bradley, 106 ldaho 358, 679 P.2d 635

(1983), cert. denied, 464 U.S. 1041

(1984); People v. Coto, 199 Colo. 508, 611

P.2d 969 (1980). Thus, this Court should

grant certiorari in order to resolve the

conflict amongst these various state

courts.

III. THIS COURT SHOULD ADOPT AND APPLY

GUIDELINES FOR DETERMINING WHETHER

EXIGENT CIRCUMSTANCES JUSTIFY A

WARRANTLESS ARREST IN A DWELLING.

The Supreme Judicial Court concluded

that there were no exigent circumstances

to justify the challenged entry. In so

ruling, it is submitted that the Court

below failed to apply an appropriate

standard. This case thus provides an

occasion, not present in Payton v. New

York, supra, “to consider the sort of

emergency or dangerous situation,

described ... as ‘exigent

;

circumstances,’ that would justify a

warrantless entry into a home for the

purpose of .. . arrest." Id., 445 U.S.

at 583. |

In Dorman v. United States, 435 F.2d

385, 392-93 (D.C.Cir. 1970), the en banc

United States Court of Appeals for the

District of Columbia Circuit set forth a

number of factors it deemed material to

making the determination whether a |

warrantless arrest in a dwelling is

reasonable. See also, e.g., United States

v. Standridge, 810 F.2d 1034, 1037 (llth

Cir. 1987). In Welsh v. Wisconsin, 466

U.S. 740, 752 (1984), this Court

acknowledged that at least the first

factor set forth in Dorman - gravity of

the offense - was an important

consideration in the constitutional

analysis. This case provides an

i.

opportunity for this Court to address the

other Dorman factors, and thereby provide

more specific guidelines for the lower

courts.

In this case, application of the

standard adopted in Dorman shows that the

search was indeed reasonable. Derosia was

a fugitive, wanted for firearm and drug

charges, as well as bail jumping. Thus,

. there was a substantial risk of flight.

The police had ieé on to believe that he

) was armed, and that he might be forewarned

of their arrival, either by a telephone

call from the visitors who had been

questioned by the police, or through use

of a police scanner. These various

factors would lead reasonable, prudent law

) enforcement officers to believe that a

failure to act with haste would increase

the risk of danger not only to themselves,

but possibly to the public at large if it

|

became necessary to make the arrest on the

street. “The Fourth Amendment does not

require police officers to delay in the

course of an investigation if to do so

would gravely endanger their lives or the

lives of others." Warden v. Hayden, 387

U.S. 294, 298-99 (1967). Where the police

have probable cause to believe that a

suspect is armed, that fact alone ought to

justify a decision to act with all due

hast

Further supporting a finding of

reasonableness is the manner in which the

entry occurred. The police used no force,

and conducted no search of the house

itself. They acted promptly upon receipt

of the information. In these circum-

stances, it is submitted that the arrest

without a Massachusetts warrant was not

unreasonable under the Fourth Amendment.

- 19 -

CONCLUSION

For the foregoing reasons, the

petition for writ of certiorari to review

the judgment of the Supreme Judicial Court

of the Commonwealth of Massachusetts

should be granted.

Respectfully submitted,

: JAMES M. SHANNON

: Attorney General

LINDA G. KATZ

Assistant Attorney General

‘ Criminal Bureau

One Ashburton Place

; Boston, Massachusetts 02108

(617) 727-2200 ext. 2814

(Counsel of Record)

PP ee ee a

APPENDIX A

COMMONWEALTH vs. LEO A. DEROSIA.

Worcester. April 6, 1988. — May 4, 1988.

Present: Hennessey, C.J., Liacos, Asrams, Notan, & Lyncu, JJ.

Search and Seizure, Home of third person. Constitutional Law, Search and

seizure.

Where police officers made a warrantless entry into the dwelling of a sus-

pect’s mother in which he was a lawful visitor, frisked the suspect,

found a pistol in his waistband, and then arrested him, the police activity,

in the absence of any showing of exigent circumstances or consent, was

not justified under ihe Fourth Amendment of the Federal Constitution,

and consequently, the judge properly allowed a motion to suppress as

evidence the firearm seized by the police. [286] Ff

COMPLAINT received and sworn to in the Gardner Division

of the District Court Department on January 6, 1986.

On appeal to the jury session of the Fitchburg Division, a

pretrial motion to suppress evidence was heard by Thomas F.

Sullivan, Jr., J.

An application for an interlocutory appeal was allowed by

Wilkins, J., in the Supreme Judicial Court for the county of

Suffolk, and the appeal was reported by him.

Katherine E. McMahon, Assistant District Attorney, for the

Commonwealth.

Peter K. Binder for the defendant.

NOLAN, J. As a result of a search and a seizure of a firearm

from his person on January 5, 1986, the defendant was found

guilty at a bench trial of unlawfully carrying a firearm. He

appealed to the jury session, and before trial, he filed a motion

to suppress the firearm. The judge allowed the motion. The

Commonwealth appealed and a single justice of this court

allowed the Commonwealth’s application for interlocutory ap-

peal. We affirm.

- 2a =

We have the benefit of the motion judge’s thoughtful findings

of fact from which we learn that an officer of the police depart-

ment of Keene, New Hampshire, received a telephone call

from an anonymous informant on January 5, 1986. The caller

told the police officer that the defendant was in the area and

armed with a .32 caliber handgun. This police officer knew

that a capias had been issued on a New Hampshire indictment

for arrest of the defendant for his defaulting on a bail bond,

and for weapons and narcotics offenses. Armed with another

report as to the defendant’s location, this police officer tele-

phoned a home in Gardner, Massachusetts. The telephone was

answered by the defendant (the officer recognized his voice).

A check of the telephone records indicated that the residence

called was that of the defendant’s mother in Gardner.

The police officer in Keene then telephoned a police officer

in Gardner and told him that the defendant was in Cardner, in

his mother’s home, was armed, probably had a police s: .nner,

and that he was wanted on a capias in New Hampshire for a

weapons offense. He told the Gardner police officer that the

defendant may be operating a motor vehicle with Texas regis-

tration plates, and furnished a detailed description of the de-

fendant. The Gardner police officer confirmed the existence

of the weapons charge, as well as the default on the bail bond

and his outstanding narcotics offenses by using a computer

terminal linked to the National Crime Information System.

The Keene police department sent the capias to the Gardner

police and, on receipt of it, the Gardner police went to the

residence of the defendant’s mother. Two persons emerged

from the residence and drove away. A police officer stopped

them and asked whether the defendant was present in his

mother’s home. The driver acknowledged the defendant’s pres-

ence in the house, but he said that he did not know whether

the defendant was armed at the time.

This police officer then telephoned an assistant clerk of the

local District Court and told him of the defendant’s location

and the capias. The assistant clerk advised the police officer

that a warrant for the defendant’s arrest was not necessary.

Several police officers went to the residence of the defendant’s

- 3a -

mother. One police officer knocked on the door. The defendant

responded. The police entered the apartment, frisked the de-

fendant, found a pistol in his waistband, and then arrested him.

We are deciding this case under the United States Constitu-

tion under which, absent exigent circumstances, police may

not make a warrantless entry into a person’s dwelling to arrest

him or to seize evidence. Payton v. New York, 445 U.S. 573,

587-589 (1980). Commonwealth v. Forde, 367 Mass. 798,

800 (1975), and cases cited. It is true that the defendant was

not in his own dwelling. He was a visitor lawfully in the home

of his mother. Our law is clear that in these circumstances,

absent exigency or consent, a search or arrest warrant must

first be obtained before police may enter the home of a third

person in search of a suspect. Steagald v. United States, 451

U.S. 204, 205-206 (1981).

In this case, there were no exigent circumstances to justify

a warrantless entry into the dwelling of the defendant’s mother.

The provision for a warrantless arrest in G. L. c. 276, § 20B

(1986 ed.),' does not advance the Commonwealth’s position

because the statute does not authorize an entry into a dwelling

to effectuate a warrantless arrest.

The judge was correct in allowing the defendant’s motion

to suppress the firearm seized on his person in his mother’s

home.

So ordered.

‘General Laws c. 276, § 20B provides: “The arrest of a person may be

lawfully made also by any officer authorized to serve warrants in criminal

cases, without a warrant, upon reasonable information that the accused

stands charged in another state with a crime punishable by death or by

imprisonment for a term exceeding one year, but when so arrested the

accused shall be taken with all practicable speed before a court or justice

authorized to issue warrants in criminal cases and complaint shall be made

against him under oath setting forth the ground for the arrest as in the

preceding section; and thereafter his answer shall be heard as if he had been

arrested on a warrant.”

= “eo =

APPENDIX B

COMMONWEALTH OF MASSACHUSETTS

WORCESTER, ss. District Court

Department

Fitchburg Division

Six Person Jury Session

No. 8616/JC/0890-A

COMMONWEALTH

Findings of Fact and

Rulings of Law on

Defendant's Motion

to Suppress

Vv.

LEO A. DEROSIA

~~ NS ee Se

On January 5, 1986, Officer Edward

Gross of the Keene, New Hampshire Police

Department received a phone call from an

informant in the Keene area. The

informant told the officer that the

defendant was in town and was in

possession of a 32 caliber handgun. The

officer knew that an active capias had

been issued for the defendant's arrest.

The capias was for firearms, drug, and

bail jumping charges. The officer also

knew the defendant from prior dealings and

had arrested him for sale of a controlled

substance. Officer Gross read another

officer's report on additional alleged

Criminal activity of the defendant. The

officer made a telephone call to a phone

number in Gardner, Massachusetts and heard

the voices of a woman and a man and

recognized the defendant's voice. The

officer did not identify himself and

feigned trouble with the connection.

After the call, the telephone company

provided the officer with the address in

Gardner where the phone number was

located. At about 8:00 p.m., the officer

telephoned the Gardner Police Department

and spoke to them about the defendant.

Among other information, the officer told

the Gardner officer, Officer Janowski,

that defendant was wanted on a weapons

charge, was carrying a 32 caliber handgun,

and probably had a police scanner. The

- §a -

officer asked the Gardner officer to run a

check on the defendant on his National

Crime information terminal. The Gardner

officer, employing his computer, verified

that defendant was wanted in Keene for

narcotics, weapons, and bail jumping

charges.

Officer Gross provided a detailed,

accurate description of the defendant, and

told Officer Jankowski that he might be

operating a motor vehicle with a Texas

registration plate.

Officer Gross had the original of the

Keene capias relayed through various

police departments, to the Gardner Police

station. Officer Arsenault of the Gardner

Police Department was dispatched to watch

260 Main Street, the house in which the

defendant had answered the phone earlier.

At about 9:00 p.m., Officer Arsenault saw

two people exit the 260 Main Street

address and drive from the area. The

officer stopped the motor vehicle and

questioned the driver who told the officer

that he had just seen the defendant in his

mother's home but did not know if the

defendant was in possession of a handgun.

Officer Jankowski contacted Assistant

Clerk Arthur Boudreau at about 9:00 p.m.,

id advised him of the situation. Mr.

Boudreau advised the officer that a

Massachusetts warrant would not be

necessary.

At this time, the Keene capias arrived

at the station and plans were formulated

to arrest the defendant. The house in

question was still under surveillance.

Four or five officers went to the location

and surrounded the house. Officer St.

Laurent knocked on the door, defendant

opened the door, and the officers entered

the apartment. Officer St. Laurent

frisked defendant's waist area and found

the pistol. Then Officer St. Laurent

began questioning defendant and kept

asking him if he was Leo Derosia. After a

few minutes of questioning, the defendant

was arrested inside the apartment.

The defendant was visiting at his

mother's house at the time. He was not

living there and did not intend to sleep

there that evening.

The Commonwealth argues that Chapter

276 of the Massachusetts General Laws

provides authority for a warrantless entry

into the residence of another to arrest

the defendant. The Commonwealth asks the

court to rule that M.G.L. ch. 276, 20B

allows an arrest without an arrest or

search warrant in any place including

one's own residence or the residence of

another. Chapter 276 provides:

M.G.L. Ch 276, §20A

Whenever any person within this

commonwealth shall be charged, on the

oath of any credible person before any

court or justice in this commonwealth

authorized to issue warrants in

criminal cases, with the commission of

any crime in any other state,

including cases arising under section

thirteen, or with having been

convicted in such other state and

having escaped from confinement or

having broken the terms of his bail,

probation or parole, or whenever

complaint shall have been made before

any such court or justice in this

commonweal'h setting forth, on the

affidavit vf .ny credible person in

another state, that a crime has been

committed in such other state and that

a person has been charged in such

state with the commission of a crime,

including cases arising under section

thirteen or with having been convicted

of a crime in that state and having

broken the terms of his bail,

probation or parole, and is believed

to be in this commonwealth, such court

or justice may issue a warrant

directed to any officer authorized to

serve warrants in criminal cases

commanding him to apprehend the person

named therein, wherever he may be

found in this commonwealth, and bring

him before the same or any other such

court or justice convenient of access

to the place where the arrest may be

made to answer the charge or complaint

and affidavit; and a certified copy of

the sworn charge or complaint and

affidavit upon which the warrant is

issued shall be attached to the

warrant.

EEO EO

- 10a -

M.G.L. Ch 276, §20B

The arrest of a person may be

lawfully made also by any officer

authorized to serve warrants in

Criminal cases without a warrant, upon

reasonable information that the

accused stands charged in another

state with a crime punishable by death

or by imprisonment for a term

exceeding one year, but when so

arrested the accused shall be taken

with all practicable speed before a

court or justice authorized to issue

warrants in criminal cases and

complaint shall be made against him

under oath setting forth the ground

for the arrest as in the preceding

section; and thereafter his answer

shall be heard as if he had been

arrested on a warrant.

Section 20A and 20B of Chapter 276 are

Similar to Sections 13 and 14 of the

Uniform Criminal Extradition Act.

Since there were no exigent

Circumstances and the defendant was inside

the private residence of another, a

warrantless entry into this dwelling to

arrest a defendant for any crime committed

in this Commonwealth would have been

barred by the Fourth Amendment. Steagald

- lla -

v. United States, 451 U.S. 204 (1981);

Payton v. New York, 445 U.S. 573 (1980);

United States v. Santana, 427 U.S. 38

(1976); Commonwealth v. Forde, 307 Mass.

798 (1978); Commonwealth v. Huffman, 385

Mass. 122 (1982).

In Payton, the Supreme Court, in

strong language, struck down a New York

statute which allowed the police o enter

a private residence without a warrant to

make a felony arrest. There was probable

cause to arrest in each case. Payton was

wanted for murder and Riddick was sought

for two armed robberies, but in both cases

the police went to their homes without an

arrest warrant to arrest them for the

above mentioned crimes. The police broke

into Payton's home, but at Riddick's

residence, his son answered the door and

the police immediately saw Riddick sitting

therein. The court held that the statute

was unconstitutional on the grounds that

the Fourth Amendment prohibits the police

from making a warrantless and

nonconsensual entry into a suspect's home

to make a felony arrest. The reasons for

upholding warrantless arrests in a public

place, United States v. Watson, 423 U.S.

411 (1976), do not apply to warrantless

invasions of the pi vacy of the home. In

Payton, supra at 588, the court summarized

its position:

To be arrested in the home involves

not only the invasion attendant to all

arrests but also an invasion of the

Sanctity of the home. This is simply

too substantial an invasion to allow

without a warrant, at least in the

absence of exigent circumstances, even

when it is accomplished under

statutory authority and when probable

cause is present. United States v.

Reed, 272 F.2d 412, 423 (1978).

In Steagald, the Supreme Court held

that, absent exigent circumstances or

consent, law enforcement officers could

not legally search for the subjects of an

- l3a -

arrest warrant in the home of a third

party, without first obtaining a search

warrant. In Steagald, a DEA agent was

contacted in Detroit about a federal

fugitive, Ricky Lyons, wanted on drug

charges. An informant told the agent that

Lyons was now in Atlanta and can be

contacted at a certain phone number. This

information was relayed to another agent

in Atlanta, who discovered that Lyons was

the subject of an arrest warrant valid at

that location. The agent, having secured

an address from the telephone company,

went to Steagald's home to arrest Lyons,

and searched this home looking for Lyons.

Cocaine belonging to Steagald was found

during the search for Lyons. The narrow

issue before the court was whether an

arrest warrant, as opposed to a search

warrant, was adequate to protect the

Fourth Amendment interests of persons not

- l4a -

named in the warrant, when their homes are

searched without their consent and in the

absence of exigent circumstances. The

Supreme Court in no uncertain terms

condemned the use of an arrest warrant in

such a case because an arrest warrant, to

the extent that it is invoked as authority

to enter the homes of third parties,

suffers from the same infirmitie;s « a

general warrant and writ of assistance

which were condemned by the framers of the

constitution. An arrest warrant specifies

only the object of the search and leaves

to the unfettered discretion of the

police. [sic] The decision as to which

particular homes should be searched. The

Supreme Court considered the practical

problems such as the inherent mobility of

persons as opposed to objects that might

arise if the police are required to obtain

search warrants. However, the Supreme

eS A Se,

- 15a -

Court was of the opinion that the

Constitutional Rights to be protected

outweighted [sic] the practical problems

police might encounter.

Whatever practical problems remain,

however, cannot outweigh the

constitutional interests at stake.

Any warrant requirement impedes to

some extent the vigor with which the

Government can seek to enforce its

laws, yet the Fourth Amendment

recognizes that this restraint is

necessary in some cases to protect

against unreasonable searches and

seizures. We conclude that this is

such a case. The additional burden

imposed on the police by a warrant

requirement is minimal. In contrast,

the right protected - that of

presumptively innocent people to be

secure in their homes from

unjustified, forcible intrusions by

the Government - is weighty. Thus, in

order to render the instant search,

reasonable under the Fourth Amendment,

a search warrant was required.

The New Hampshire arrest warrant was

only valid within the jurisdiction of the

sovereignty from which it was issued.

Cohen v. Saddlemire, 26 F. Supp. 27 (1939)

(State process in Massachusetts does not

extend to a sister state); Ex Parte

Graves, 236 Mass. 493 (1920); Mitchell v.

Dexter, 244 F. 926 (1917) (Wisconsin Court

without authority to issue a writ for

arrest of Dexter in Massachusetts); Palmer

v. Thompson, 20 App. D.C. 273; People v.

Martin, 76 N.Y.S. 953, 955 (Statutes of

one state have, ex proprio vigore, no

force or effect in another); Sullivan v.

Wentworth, (1884) [sic]; Commonwealth

v. Foster, 1 Mass. 488 (1805). In this

Commonwealth, an arrest warrant must be

specifically directed to some officer or

class of officers authorized to serve

Criminal process in Massachusetts. Ex

Parte Graves, supra; Commonwealth v.

Foster, supra; MGL c. 276, 23; MGL c. 218,

37; Mass. R. Crim. P. 6(c)(1l).

The New Nemeehire arrest warrant plus

the other information the police possessed

clearly provided grounds for the issuance

of a search warrant pursuant to MGL c.

276, §1-3 and an arrest warrant pursuant

to MGL c. 276, 20A. A Clerk of the

District Court has authority to issue a

warrant under MGL 276, 20A. Thompson v.

] New ., 279 Mass. 176

(1932). The function of a fugitive

.warrant issued under Section 13 of the

Uniform Criminal Extradition Act or MGL c.

276, 20A is to provide for the arrest and

detention of an alleged fugitive pending

the institution of an extradition

proceeding. State ex Rel, Wells v.

Hanley, 27 N.W.2d 373 (1947). The

issuance of a fugitive warrant is a

separate proceeding from the issuance of a

rendition warrant by the governor for the

extradition of a person to another state.

State ex Rel. Wagner v. Hedman, 195 N.W.2d

420 (1972); In Re Chenowith, 432 P.2d 132

(1967).

- 18a -

The enactment of 20A demonstrates that

the legislature did not intend that every

fugitive arrest be made without a

warrant. This court is mindful of the

canons of statutory construction that a

statute must be construed so as to avoid

not only the conclusion that it is

unconstitutional but also grave doubts

upon that score, and that all rational

presumptions are made in favor of the

validity of every legislative enactment.

Alegata v. Commonwealth, 231 N.E.2d 201

(1967). Yet there is no escape from the

conclusion that 20B would be

unconstitutional if it allowed the

warrantless arrest of a fugitive in a

residence absent exigent circumstances,

therefore, it is the opinion of this court

that MGL c. 276, 20B must be governed by

the limitations imposed by Payton and

Steagald. Thus, a warrantless arrest

- 19a -

absent exigent circumstances, such as we

have in the instant case, violates the

Fourth Amendment. Such an interpretation

of 20B will not hamper law enforcement.

Steagald v. United States, supra at 1653.

The problems inherent in interstate cases

were present in Steagald and are

encountered daily by federal agents.

Fugitive arrests without a warrant under

20B will still be permitted in any place

outside of a residence, United States v.

Watson, supra, and inside of a residence

if exigent circumstances exist or if the

police are in hot pursuit of a fugitive.

This court need not decide today whether

an arrest warrant would have been

sufficient in the present case since the

defendant was arrested prior to any search

and the revolver was found on his person

and not as a result of a search of the

house.

- 20a -

The defendant's warrantless arrest

inside his mother's home and the

subsequent seizure of the revolver were

illegal. Accordingly, the Motion to

Suppress is allowed.

ZsZ

Thomas F. Sullivan, Jr.

Associate Justice

Dates:[{sic] December 26, 1986